Garroutte v. State

• Decision Date: 18 May 1984
• Docket Number: No. 7457,7457
• Citation: 683 P.2d 262
• Parties: George Larry GARROUTTE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 262

683 P.2d 262

George Larry GARROUTTE, Appellant, v. STATE of Alaska, Appellee.

No. 7457.

Court of Appeals of Alaska.

May 18, 1984.

Kevin F. McCoy, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant.

Richard W. Maki, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

George Larry Garroutte was charged by indictment with one count of theft by taking in the second degree and one count of theft by receiving in the second degree. AS 11.46.100(1); AS 11.46.130(a)(1); AS 11.46.190. Following a jury trial, Garroutte was convicted of theft by receiving and acquitted of theft by taking. Superior Court Judge Seaborn J. Buckalew sentenced Garroutte to serve four years in prison. Garroutte appeals, contending that the trial court improperly excluded a statement against penal interest made by his co-defendant, Richard Snyder. In addition, Garroutte argues that the court erred in admitting evidence that guns were found in a truck driven by Garroutte and Snyder on the night of the offense and in denying Garroutte's motion for a new trial. Garroutte also argues that his sentence is excessive. We affirm Garroutte's conviction, but remand for amendment of the sentence.

FACTS

On the night of April 7, 1982, an Alaska State Trooper stopped a blue pickup truck traveling towards Anchorage on the Parks Highway near Wasilla. George Garroutte was driving the truck, and Richard Snyder was in the passenger's seat. A large quantity of heavy electrical cable was in the bed of the truck. The trooper arrested Snyder on an outstanding federal warrant for a parole violation. Garroutte was cited for driving while his license was suspended. Since no one was left to drive the truck, it was impounded. A routine inventory search later disclosed two loaded handguns, one under the driver's seat and the other under the passenger's seat.

On the next morning, troopers received a report that approximately 500 feet of electrical cable had been stolen during the night from a gravel pit operated by the M.B. Construction Company near Wasilla. Investigation confirmed that the cable in the impounded pickup truck was stolen from the M.B. Construction Company. Garroutte and Snyder were subsequently charged with the theft.

Snyder eventually entered a plea of guilty to the charge. Jay Seymore, the probation officer assigned to write Snyder's presentence report, interviewed Snyder prior to his sentencing hearing. Snyder admitted stealing the cable but told Seymore that he had been assisted by Gregory Hayes ¹ and that Garroutte was innocent of the offense. Seymore included a summary of Snyder's statement in his presentence report.

Garroutte was tried after Snyder had already been sentenced. At Garroutte's trial, the state attempted to call Snyder as a witness. Despite offers of state and federal immunity, and despite a finding of contempt by the court, Snyder refused to testify. Based on Snyder's unavailability as a witness, Garroutte offered to call Seymore as a witness to testify about Snyder's statement to Seymore, which exculpated Garroutte. Judge Buckalew ruled that the statement was hearsay and was not within any exception to the hearsay rule. He therefore excluded it.

EXCLUSION OF EXCULPATORY EVIDENCE

1. Statement Against Penal Interest

Garroutte contends that testimony of Snyder's statement to Seymore should have been admitted because it fell within the hearsay exception for statements against penal interest. Alaska Rule of Evidence 804(b)(3) provides:

(b) Hearsay Exceptions. The following are not included by the hearsay rule if the declarant is unavailable as a witness:

....

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. [Emphasis added.]

Although this rule has not previously been interpreted in Alaska, Federal Rule of Evidence 804(b)(3), which is virtually identical, has received considerable attention. The federal cases generally require that three criteria be met before evidence of a statement against penal interest can be admitted to exculpate the accused in a criminal trial:

To be admissible under [Federal Rule of Evidence] 804(b)(3), a statement must meet three tests: the declarant's testimony must be unavailable; the statement must so far tend to subject the declarant to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true"; and the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.

United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978). See also United States v. MacDonald, 688 F.2d 224, 232-33 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983).

In the present case, no question of unavailability is presented. Judge Buckalew found that Snyder was unavailable by virtue of his refusal to testify, and this finding has not been challenged by the state. There is a substantial question, however, whether Snyder's statement was against his penal interest and whether it was adequately corroborated.

Snyder's statement that Garroutte was not involved in the theft was not, standing alone, against Snyder's interest. The portion of Snyder's statement that exculpated Garroutte can be deemed to be against Snyder's penal interest only if it is read in conjunction with the portion of the statement in which Snyder personally admitted guilt. There is authority holding that a statement exculpating another person may be deemed to be against the penal interest of the declarant when the exculpatory statement is an integral part of a confession or when it creates an inference that the declarant was the guilty party. See, e.g., United States v. Thomas, 571 F.2d at 288; United States v. Goodlow, 500 F.2d 954, 956 (8th Cir.1974). Here, the portion of Snyder's statement that exculpated Garroutte was closely connected to his statement admitting guilt and implicating Hayes. Nevertheless, because Snyder's admission of guilt to Seymore occurred after Snyder had already entered a plea of guilty to the theft, it is difficult to view the admission as one that would actually have exposed Snyder to additional criminal liability. As the state correctly notes, Snyder's candid admission of guilt to his presentence probation officer might actually have worked to his benefit at sentencing.

Garroutte argues that the exculpatory portion of Snyder's statement could have resulted in a harsher sentence if the statement was determined to be false. While this argument may be correct, the extent to which the statement exposed Snyder to liability is attenuated by the strong possibility that the statement would not be determined to be false. Snyder's admission was not, on its face, contrary to his penal interest when made. The likelihood that the truthfulness of the statement could not be ascertained prior to Snyder's sentencing makes it doubtful whether Snyder would reasonably have been deterred from making a false statement to Seymore.

There is, however, sound authority for the proposition that Evidence Rule 803(b)(3) should be construed broadly in determining whether a statement meets the requirement of being against penal interest:

If Congress had wanted courts to take a restrictive approach to whether a statement is against penal interest, it would not have chosen "the broadly worded phrase 'tended to subject' " in Rule 804(b)(3). United States v. Benveniste, 564 F.2d 335, 341 (9th Cir.1977).

United States v. Satterfield, 572 F.2d 687, 691 (9th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978). See also United States v. Thomas, 571 F.2d at 288. It should nonetheless be recognized that an out-of-court statement exposing the declarant to only a slight possibility of prosecution or punishment will tend to be less trustworthy; this factor may in turn be considered in determining the extent of corroboration necessary to meet the requirements of Rule 804(b)(3). See United States v. Satterfield, 572 F.2d at 691. Because we believe that Snyder's statement to Seymore was not adequately corroborated, we will assume that it tended to expose him to a sufficient threat of criminal liability to satisfy the requirement of being against penal interest.

In considering the issue of corroboration, federal courts have consistently emphasized that under Evidence Rule 803(b)(3), corroboration will be deemed sufficient only if it clearly indicates the trustworthiness of an out-of-court statement exculpating the accused. See United States v. Satterfield, 572 F.2d at 693; United States v. Alvarez, 584 F.2d 694, 701 (5th Cir.1978); United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977). Garroutte argues that Snyder's statements are corroborated by evidence indicating that Garroutte made statements shortly after the offense asserting his own innocence. He also claims that corroboration is provided by evidence that he was injured and incapable of lifting heavy electrical cable at the time of the offense. We do not find these arguments persuasive.

Garroutte's own professions of innocence are obviously self serving, and while they might establish lack of recent fabrication, they do little to enhance the credibility of Snyder's out-of-court statemen...